Sri Hanamappa S/O Laxmappa Huddar Vs Smt. Lakkavva W/O Rangappa Hosamani

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE, PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 20.11.2024 PASSED BY THE PRINCIPAL JUDGE FAMILY COURT BAGALKOT IN RA NO.78/2024 WHEREIN DISMISSED THE APPEAL BY CONFIRMING THE JUDGMENT AND DECREE DATED 17.12.2022 PASSED BY THE 1^ST ADDITIONAL SENIOR CIVIL JUDGE AND JMFC BAGALKOT IN OS NO.33/2020 IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC-D:7695 RSA No. 100097 of 2025

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is by the defendant Nos.1, 2 and 4

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being aggrieved by the judgment and decree dated 17.12.2022 passed in OS No.33/2020 on the file of I Additional Senior Civil Judge and JMFC, Bagalkot (for short, ‘Trial Court’), decreeing the suit for partition and separate possession filed by the respondents/plaintiffs which is confirmed by the judgment and order dated 20.11.2024 in RA No.78/2024 (old RA No.3/2023) on the file of Principal Judge, Family Court, Bagalkote (for short, ‘First Appellate Court’).

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The above suit in OS No.33/2020 is filed by the plaintiffs/respondents herein against the appellants herein who are the defendants, contending that, they are the children of one deceased Laxmappa. That the suit schedule-B properties are the undivided ancestral joint family properties of the plaintiffs and the defendants which

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stood in the name of said Laxmappa. Upon his demise, the defendant Nos.1 and 2/appellant Nos.1 and 2 herein had

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HC-KAR

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mutated their names in the revenue records. The plaintiffs

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had not given up their rights over the suit schedule properties and continued to be in joint possession and enjoyment of the same and since, their request for partition was declined, suit for partition and separate possession was filed.

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Defendant No.3 on service of summons

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remained absent and placed exparte. Defendant Nos.1, 2 and 4 appeared. Defendant No.1 filed written statement which is adopted by defendant Nos.2 and 4.

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3.1. It is contended by the defendants that the original propositus Laxmappa passed away in the year 1994. Upon his demise, plaintiffs have received Rs.1,00,000/- each in lieu of their share, rights, title or interest in the suit schedule properties as they were unable to cultivate the same, They were given in marriage and they were leaving separately in their husbands’ houses far away from the suit schedule properties. That mutation entry was recorded in this regard vide D.E.No.1789 which is well within the knowledge of the

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plaintiffs and they have not challenged the said entries by preferring any appeal. As such, the plaintiffs have no share, right, title or interest over the suit schedule properties. The suit is barred by limitation. That an earlier occasion, plaintiffs have filed OS No.448/2015 before the Civil Judge (Jr.Dn.) Court at Bagalkot which was withdrawn on the ground of jurisdiction. Despite withdrawing the said suit, they did not file the suit within limitation. Present suit which is filed belatedly, is not maintainable. Hence, sought for dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues for its consideration:

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1. Whether the plaintiffs prove that the suit schedule properties are ancestral and the joint family properties of themselves and defendants?

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2. Whether the plaintiffs prove that they are entire for 1/6^th share in the suit schedule B properties?

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3. Whether defendant No.1 proves that the suit of the plaintiffs is barred by law of limitation?

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NC: 2025:KHC-D:7695 RSA No. 100097 of 2025

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HC-KAR

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4. Whether defendant No.1 proves that the suit of the plaintiffs is bad for non - joinder of necessary parties?

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5. Whether plaintiffs prove that they are entitled for the relief as claimed in the plaint?

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6. What order or decree?

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On examination of oral and documentary

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evidence adduced by the parties, the Trial Court answered issues Nos.1, 2 and 5 in the affirmative and issue Nos.3 and 4 in the negative and consequently, decreed the suit of the plaintiffs declaring that plaintiffs are entitled to claim 1/7^th share in the plaint schedule-B properties. Being aggrieved by the same, the defendants have preferred regular appeal. The First Appellate Court framed the following points for its consideration:

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1. Whether the judgment and decree of the trial court is capricious, perverse and requires interference?

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2. What order?

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On appreciation of evidence, the First Appellate Court answered the same in the negative and

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HC-KAR

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consequently, dismissed the appeal confirming the

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judgment and decree passed by the Trial Court.

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The only ground urged in the present appeal is

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that, the Trial Court and the First Appellate Court not having appreciated the contention of the defendants that the plaintiffs having received Rs.1,00,000/- each have relinquished their rights over the suit schedule properties, in furtherance to which mutation entry D.E.No.1789 having been effected and the same not having been challenged attaining finality and suit filed after 26 years is not maintainable.

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7.1. The other contention urged by the defendants is

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that, in the earlier suit filed by the plaintiffs in OS No.448/2015 having been withdrawn on the ground of limitation, the subsequent suit filed after five years was again barred by limitation. Hence, learned counsel for the appellants submits that there arises of substantial question of law warranting interference.

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Heard and perused the records.

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HC-KAR

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9. Relationship between the parties and the source

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of properties having been inherited by the parties through Laxmappa-the father of the plaintiffs and defendants is not in dispute. Contentions of the defendants is that upon the demise of said Laxmappa they have paid Rs.1,00,000/each to the plaintiffs and they are relinquished their rights over the suit properties, consequent to which names of defendant Nos.1 and 2 were mutated in the revenue records. No documents regarding relinquishment of rights by the plaintiffs have been produced by the defendants. The Trial Court and the First Appellate Court have rightly

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observed that since, the defendants claim to have acquired shares of the plaintiffs in consideration of payment of Rs.1,00,000/-, which amounts to creation of rights in their favour requiring registration in the manner

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known to law and in the absence of defendants producing any legally acceptable deeds conveyance in this regard having been executed in terms of Section 17 of the Registration Act, their plea of relinquishment was not acceptable. No error in this regard can be found.

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HC-KAR

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The other contention is regarding plaintiffs filing a suit and withdrawing on the question of jurisdiction and filing the same after five years and thereby causing delay in filling the present suit, would also not come to rescue of the defendants as it is not the case of the defendants that plaintiffs were ousted from the suit schedule properties. Withdrawal of the suit and filing subsequent suit would not a ground to the plaintiffs giving of their share or using their rights to succeed for partition of the property.

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Further the counsel for the appellant has filed a memo along with order sheet in the said OS No.448/2015 wherein the plaint has been returned to present before the court having jurisdiction in terms of Order 7 Rule 10 of CPC directing the parties to appear before the court at Principal Senior Civil Judge, Bagalkot on 10.02.2020. On a query by this Court, learned counsel for the appellant submits that the present suit has been instituted on 06.02.2020 as such the same is well within limitation.

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Since, the defendants failed to prove relinquishment of share by the plaintiffs in a manner

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known to law and in the absence of deeds by the defendants, the property remained joint and undivided which the plaintiffs are entitled seek partition in a manner to known to law.

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No irregularity or illegality can be found in the judgments and decree passed by the Trial Court and confirmed by the First Appellate Court. This Court in the second appeal do not see any reason to interfere with the same. No substantial question of law would arise for consideration. Therefore, the appeal is dismissed

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accordingly.

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Pending applications, if any, are disposed off

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accordingly.

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Sd/(M.G.S. KAMAL) JUDGE

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SMM/CT-ASC List No.: 1 Sl No.: 28

Sri Hanamappa S/O Laxmappa Huddar v. Smt. Lakkavva W/O Rangappa Hosamani

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Sri Hanamappa S/O Laxmappa Huddar v. Smt. Lakkavva W/O Rangappa Hosamani

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